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WASHINGTON ― Republicans have been shredding Obama-era regulations with a special congressional power that not only kills a regulation but also is supposed to stop a federal agency from ever reissuing similar rules.
When it comes to mandatory drug testing for unemployed people, however, Republicans actually want the U.S. Labor Department to reissue a rule that Congress and President Donald Trump killed last month. It remains unclear what will happen with the policy, but the episode has already demonstrated that even if Congress kills a regulation, there’s no guarantee it will stay dead.
Federal agencies issue regulations to carry out laws Congress has passed. In the 1990s, Congress gave itself a special power when it passed the Congressional Review Act, which essentially provides a shortcut for lawmakers to strike down regulations an outgoing president issues before leaving office.
In the 1990s, Congress gave itself a special power when it passed the Congressional Review Act, which provides a shortcut for lawmakers to strike down recently issued regulations. The procedure is only effective when one party gains control of both Congress and the White House, since a sitting president of the opposite party could veto attacks on his regulations.
Trump has signed more than a dozen Congressional Review Act resolutions since taking office. One of them nullified a rule the Labor Department issued last year that allowed states to drug-test people applying for unemployment insurance ― but only for unemployed people seeking work in a narrow range of occupations with a public safety component, such as commercial drivers and police officers. (Unemployment insurance is a federal-state program that replaces a portion of a person’s wages if she is laid off through no fault of her own. Before the regulation, the federal government has never allowed states to add a drug test as a condition of eligibility.)
Republicans hated the rule the Obama Labor Department produced, because they wanted states to be able to drug-test unemployed workers in other occupations. Last month Congress approved and Trump signed a resolution throwing out the Obama rules.
Once the regulation had been struck down, some Republicans seemed to think states could go ahead with making unemployment claimants take the tests, which has been something of an obsession for Republicans since about 2010. Sen. Roger Wicker (R-Miss.), for instance, said last month that “Mississippi should be free to pursue the drug testing reforms” the state had previously enacted. The state law had been on hold because the U.S. Labor Department hadn’t finalized its regulation until late last year.
Here’s the problem with Wicker’s view: The underlying statute that authorized the drug testing ― which Congress passed in 2012 and which is still on the books ― says states can only test unemployment claimants who are seeking work in an occupation that regularly conducts drug testing “as determined under regulations issued by the Secretary of Labor.” Those regulations are gone now, and they’re not supposed to come back.
The text of the Congressional Review Act states that a rule Congress has disapproved “may not be reissued in substantially the same form” unless lawmakers pass a new law specifically telling the relevant agency to do so. Congress hasn’t passed a new drug testing law, but some top Republicans nevertheless expect the Trump Labor Department to reissue the regulation with a broader testing mandate.
“My understanding is that they will promulgate a new rule,” Rep. Kevin Brady (R-Texas), sponsor of the drug testing resolution in the House, told The Huffington Post last month.
Spokespeople for the Labor Department declined to say what the agency would do, though its current director has said the department “looks forward to examining additional flexibilities for states relative to the drug testing of persons seeking unemployment benefits.”
Mississippi, Wisconsin and Texas each created unemployment drug testing programs that are pending while the federal regulation is sorted out. A spokesperson for Texas Workforce Commission, which handles unemployment insurance in the state, told The Huffington Post on Tuesday that the agency hasn’t received any guidance from the federal government but is waiting for the Labor Department to issue a new regulation.
Rena Steinzor, a University of Maryland law professor and co-founder of the Center for Progressive Reform, said a new regulation that is “substantially the same” as the old one would be vulnerable to a lawsuit.
“I don’t know why they were all in a fluster about this rule, but assuming there’s minor tweaking and they put it out again, somebody would have to dislike it and bring it to court,” Steinzor said.
Steinzor said she believed the Occupational Safety and Health Administration has shied away from issuing regulations to protect poultry workers from injuries in large part because Congress struck down an ergonomics regulation in 2001. Before Trump took office, the ergonomics rule was the only one that had been successfully targeted under the CRA.
Since the Congressional Review Act has been so rarely used, experts disagree on what could happen if an agency tried to replace a rule that had been nullified. Curtis Copeland, a former expert on rules with the Congressional Research Service, said it’s unlikely a lawsuit could succeed.
“Someone could try and take the agency to court, saying that the new rule is ‘substantially the same’ and therefore should not have been issued without subsequent congressional authorization,” Copeland said in an email. But he pointed out that a section of the Congressional Review Act actually exempts actions taken under the law from judicial review.
“And given this language, the courts have been generally unwilling to hear CRA-related cases, saying ‘Congress has said we have no role here,’” he said.
If courts don’t want to overturn agency actions related to the Congressional Review Act, that leaves Congress as the arbiter of what counts as “substantially the same” under the law. So if the current Congress wants an agency to redo a nullified regulation and the executive branch is happy to do so, there’s nobody else who could stop it from happening.
Some Republicans have reportedly toyed with the idea that the Trump administration could introduce liberal regulations just so the Republican Congress could permanently nullify them with the Congressional Review Act, thereby hamstringing any future Democratic presidents. The episode with the drug testing rule shows, however, that it’s mostly up to Congress whether an agency’s rules are kosher. That means the portion of Obama’s regulatory legacy that Trump has supposedly killed with the Congressional Review Act could be resurrected.
“The ‘substantially similar’ requirement of the CRA is essentially self-policed by Congress,” said Philip Wallach, a senior fellow with the Brookings Institution.
“It’s not even that clear to me that Congress has really thought through all these rules and said to themselves, ‘Oh it’s really important that we never get another rule like this,’” Wallach said, adding that he thinks Republicans’ main motivation may have been simply to rebuke Obama.
As for lawsuits, potential plaintiffs won’t necessarily need help from an arcane parliamentary law if they didn’t like a state’s unemployment drug testing scheme. George Wentworth, senior counsel for the National Employment Law Project, a worker advocacy group, pointed out that states have been stung by lawsuits over drug testing for other types of public benefits. Courts recognize that a drug test counts as a “search” by the government, and it’s up to states to make sure their programs don’t run afoul of the Constitution’s Fourth Amendment ban on unreasonable searches.
“A state that drug-tests individuals just because they are applying for unemployment benefits has got a constitutional problem,” Wentworth said.
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